Live hearings—the hallmark procedure and one of the most substantial changes under the 2020 Title IX regulations for higher education institutions—may be a thing of the past. This a possible result of the end of the “Suppression Rule” brought about by the recent court decision in Victim Rights Law Center v. Cardona and the announcement from the U.S. Department of Education Office for Civil Rights (OCR) confirming OCR will not enforce the Suppression Rule. The Suppression Rule prohibited decisionmakers at higher education institutions from considering any statements of parties or witnesses that were not subject to cross examination and therefore not tested for credibility, with potentially draconian results.
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OCR Issues Q&A on Title IX Regulations on Sexual Harassment
Tuesday, the U.S. Department of Education’s Office for Civil Rights (OCR) issued new, anticipated guidance concerning the Department’s current regulations related to sexual harassment. The guidance, titled Questions and Answers on the Title IX Regulations on Sexual Harassment, clarifies how OCR interprets schools’ existing obligations under the 2020 amendments. The Q&A addresses 67 questions covering a variety of topics ranging from general obligations under Title IX, sexual harassment, formal complaints, and participation in the grievance process to supportive measures, time frames, live hearings, informal resolution, and retaliation. The Q&A also includes an appendix containing example policy provisions addressing particular regulatory requirements.
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Despite Change in High Court Composition, U.S. Supreme Court Declines to Hear Challenge to Transgender Student Rights
This week, the U.S. Supreme Court declined to review a decision allowing transgender high school students to use bathrooms and locker rooms consistent with their gender identities. The High Court’s rebuff means the lower court decision stands. The tacit endorsement solidifies an understanding of Title IX supported by other courts, including the only other federal appellate court to address the question. The decision is also notable because of the new composition of the Court, with the addition of Justice Amy Coney Barrett. The case offered the Court an opportunity to quickly narrow the holding of the recent transgender employment decision, Bostock v. Clayton County. Yet, it did not do so.
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Q&A: What the U.S. Department of Education’s New Clery Act Appendix Really Means for Colleges’ and Universities’ Clery Act Compliance Efforts
Recently, the U.S. Department of Education (ED) replaced the 2016 Clery Act Handbook (Handbook) with the new Clery Act Appendix for FSA Handbook (Appendix). The Appendix rescinds previous ED guidance interpreting Clery Act regulations, leaving higher education institutions with 13 pages of sub-regulatory guidance. While the contents of the Appendix do not have a binding effect on institutions, the ED stated that its intent was to provide clarity regarding existing Clery Act statutory and regulatory requirements. The following Q&A addresses questions that may arise when reviewing the recent changes to Clery Act guidance.
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Video Podcast: How Will Biden Unwind Title IX?
The editors of Title IX Insights were guests on the Education Law Insights podcast hosted by Kendra Yoch to talk about how President Elect Joe Biden might unwind Title IX upon taking office. Check out the video blog below.
Franczek Webinar: What Did I Miss? Hot Title IX Issues You May Have Missed But Can’t Ignore
We’ve had a lot going on.
COVID-19. School reopening. Racial equity issues. And the cherry on top? Those Title IX Sexual Harassment regulations that we’ve been digging out from under since May 6.
With all that going on, I’d forgive you for feeling a bit like one of my favorite characters from Hamilton, Thomas Jefferson,
OCR Blog Offers Additional Insight on New Title IX Rule Requirements
As you are all well aware by now, the U.S. Department of Education recently issued its final Title IX regulations. While we continue to wade through the over 2,000-page document issued by the ED (consisting of the new regulations and the preamble commentary), OCR provided some additional guidance on its blog regarding the requirement
Why Your Next OCR Title IX Complaint May Feel Like A Lawsuit
One of the biggest changes from the new Title IX regulations issued by the Department of Education last week is that, beginning in August 2020, OCR’s complaint findings will be based on standards very similar to those used by federal courts for decades in lawsuits for money damages under Title IX. The U.S. Supreme Court set forth the standards in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), and Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Those cases included the fundamental ideas that have now been codified—in modified form—in the Department’s final rule, such as the ideas that a school can only be responsible for sexual harassment that is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”; when it exercises “substantial control” over the harasser and the “context” of harassment; and when it has “actual knowledge” of the sexual harassment. These cases also are the root of the “deliberately indifferent” standard that OCR will now use to decide if a school has violated Title IX. What do these standards mean, and what lessons can your institution learn from the court cases in which they were created and fleshed out over the past two decades?
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They’re Finally Here: U.S. Department of Education Issues Title IX Regulations
After almost one-and-a-half years since issuing its original proposed rule, the U.S. Department of Education has issued final Title IX regulations effective August 14, 2020. Although analyzing the changes will take some time, what follows is a brief initial summary of some of the main changes in the final rule. Please join us for a complimentary webinar breaking down the new rule on Monday, May 11, 2020, at 11:30 a.m. We will be working on providing you more insights, as well, in the coming days.
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Title IX Considerations During COVID-19 School Closures
While Illinois schools—and schools across the country—remain closed due to concerns about the spread of COVID-19, keep in mind that schools currently are not relieved from their obligations under Title IX or other civil rights laws. Because the Department of Education has not yet released any guidance regarding Title IX obligations during this time (and the Coronavirus Aid, Relief, and Economic Security Act passed by the Senate does not give Department of Education Secretary Betsy DeVos the ability to waive civil rights laws), we recommend continuing to follow your school’s applicable Title IX policies and procedures. Issues related to COVID-19 continue to rapidly evolve on both the federal and state level. Just this week, various advocacy and education groups—over 200 of them—urged federal officials to pause finalization of the proposed Title IX rules, citing concerns that releasing the new rules would only exacerbate challenges schools are already facing as they attempt to meet student needs remotely. As these issues continue to evolve, including the recent stay at home order here in Illinois, we will continue to monitor the impact of any developments closely. In the meantime, keep the following in mind for any investigations that were pending at the time of your school closure, or for any new reports that come in that may trigger your school’s obligations under Title IX.
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